Exhibit 10.19
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the 26th day of July 2000.
BETWEEN:
Universe2U Inc.
a corporation incorporated under the laws of Ontario
(hereinafter referred to as the "Corporation")
OF THE FIRST PART,
- and -
R. Xxxx Xxxxxxxx
of the Town of Markham
in the Province of Ontario
(hereinafter referred to as the "Executive"),
OF THE SECOND PART.
WHEREAS the Corporation wishes to retain the services of the Executive to
provide the services hereinafter described during the term hereinafter set out;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual
covenants and agreements herein contained and for other good and valuable
consideration, the parties agree as follows:
1. EMPLOYMENT
Subject to the terms and conditions of this Agreement and applicable law,
the Corporation hereby employs Executive, and the employee agrees to serve, as
Executive Vice President, Finance and Chief Financial Officer of the
Corporation. In such capacity, the Executive shall perform such duties and
exercise such power related thereto as may from time to time be assigned to him
by the CEO to achieve the annual business plans.
The Executive shall start employment with the Corporation on July 31, 2000.
2. DUTIES
The Executive shall serve the Corporation and any subsidiaries of the
Corporation in such capacity or capacities and shall perform such duties and
exercise such powers pertaining to the management and operation of the
Corporation and any subsidiaries of the Corporation as may be determined from
time to time by the CEO. Without limitation of the foregoing, the Executive
shall:
(a) devote his full time and attention and his best efforts during normal
business hours to the business and affairs of the Corporation;
(b) perform those duties that may reasonably be assigned to the Executive
diligently and faithfully to the best of the Executive's abilities and
in the best interests of the Corporation; and
(c) use his best efforts to promote the interests and goodwill of the
Corporation.
The nature of the Executive's duties hereunder may also require reasonable
amounts of domestic and international travel. It is understood, however, that
the Executive will not be required to relocate outside of the Xxxxxxx Xxxxxxx
Area without his consent.
3. REPORTING PROCEDURES
The Executive shall report to the Chief Executive Officer. The Executive
shall report fully on the business development activities, supplier
relationships and advise to the best of his ability and in accordance with
reasonable business standards on business matters that may arise from time to
time during the term of this Agreement.
4. REMUNERATION
Subject to the immediately following paragraph, the annual base salary
payable to the Executive for his services hereunder for the first year of the
term of this Agreement shall be $130,000 CDN, exclusive of bonuses, benefits and
other compensation.
When the Corporation achieves $30 million CDN in annualized revenue
(determined on a quarterly basis) the Executive's base salary shall be increased
to $150,000 CDN. This shall be reviewed upon completion of the quarterly SEC
filing.
The annual base salary payable to the Executive for his services hereunder
for each successive year of the term of this Agreement, exclusive of bonuses,
benefits and other compensation, shall increase based on the performance of the
Executive and the Corporation in the preceding fiscal year of the Corporation.
The annual base salary payable to the Executive pursuant to the provisions
of this section 4 shall be payable in equal bi-weekly installments in arrears or
in such other manner as may be mutually agreed upon.
5. STOCK OPTION PLAN
The Executive shall be entitled to participate in the Universe2U stock
option plan as prepared by the Compensation Committee and approved by the Board
of Directors.
Effective on of the date of employment, the Corporation will grant to the
Executive, 50,000 stock options at a strike price of $5.00 US (the "Signing
Options"). The Signing Options so granted shall become fully vested and
exercisable, subject to the immediately following paragraph, on July 31, 2001.
If this Agreement is terminated for Cause (hereinafter defined) or as a result
of the resignation of the Executive prior to July 31, 2001, the Corporation
shall cancel the Signing Options upon such termination.
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If the Executive's employment is terminated for any other reason, before
the Signing Options become fully vested, the Executive's Signing Options shall
become vested immediately, on a proportionate basis, prior to the date of
termination. The Executive may at any time within three months after such
termination, exercise such options, after which such options terminate in full.
It is anticipated that the Executive will have the opportunity to earn up
to 50,000 of additional options annually after the first year of employment.
Furthermore in the event that during the first year the Corporation grants
through its Stock Option Program, options below the strike price of $5.00, the
Executive may participate in the program
In the event of a Change in Control (hereinafter defined) or in the event
that a takeover bid is made in respect of the corporation all options previously
granted to the Executive shall become fully vested and exercisable.
6. BENEFITS
During the term of this Agreement, the Executive shall be entitled to
participate in the benefits program offered by the Corporation to members of its
senior management.
7. SALARY, BONUS AND PERQUISITES ADJUSTMENTS
Other than as herein provided, the Executive's annual base salary and the
bonus shall be reviewed annually and adjustments will be agreed to in writing by
the CEO of the Corporation.
8. VACATION
The Executive shall be entitled to four weeks' paid vacation per fiscal
year of the Corporation at a time approved in advance by the Chief Executive
Officer of the Corporation, which approval shall not be unreasonably withheld
but shall take into account the staffing requirements of the Corporation and the
need for the timely performance of the Executive's responsibilities.
9. AUTOMOBILE
The Corporation shall provide the Executive with a leased vehicle up to a
monthly lease cost of $600 per month, exclusive of all taxes, and agrees to
reimburse the Executive for all reasonable operating costs of the vehicle,
including, but not limited to, insurance, licensing, maintenance, gas and oil.
10. EXPENSES
The Executive shall be reimbursed for all reasonable travel and other out-
of-pocket expenses actually and properly incurred by the Executive from time to
time in connection with carrying out his duties hereunder, as well as all
professional memberships and dues of the Executive. For all such expenses the
Executive shall furnish to the Corporation originals of all invoices or
statements in respect of which the Executive seeks reimbursement.
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11. TERMINATION
The Corporation may terminate the employment of the Executive without
notice or any payment in lieu of notice for Cause. "Cause" is defined as a
termination upon a finding by the Corporation that the Executive has (i)
intentionally failed to perform reasonably assigned duties of a significant
nature, (ii) engaged in fraudulent misconduct in the performance of his duties,
(iii) engaged in a transaction in connection with the performance of his duties
to the Corporation or any of its subsidiaries thereof which transaction is
adverse to the interests of the Corporation or any of its subsidiaries and which
is engaged in for personal profit by the Executive.
12. SEVERANCE PAYMENTS
Upon termination of the Executive's employment:
(i) for Cause; or
(ii) by the voluntary termination of employment of the Executive
(resignation);
the Executive shall not be entitled to any severance payments other than
compensation earned by the Executive before the date of termination calculated
pro rata up to and including the date of termination and reimbursement for
business expenses as provided for in this Agreement that were incurred prior to
the termination of the Executive's employment.
If the Executive's employment is terminated within twelve months, of the
date of this Agreement for any other reason, other than a Change in Control, the
Corporation agrees to provide the Executive with six months continuation of
compensation (salary bonus and benefits), including automobile benefits,
unchanged and as if the Executive were still employed with the Corporation. The
continuation of compensation (salary bonus and benefits), including automobile
benefits, so agreed to in this paragraph is increased by two months for every
additional year, or part thereof, of service after the first year.
13. CHANGE IN CONTROL
In the event of a termination of this contract for any reason, immediately
prior to, or within one year following a Change in Control, by the Executive, or
by the Corporation, the Executive is entitled to the following:
(i) Severance compensation of twelve months severance (salary, and bonus),
paid fifteen days following the termination.
(ii) Vacation pay, paid fifteen days following the termination.
(iii) Twelve months continuance of all benefits, including automobile
benefits.
"Change in Control shall be determined to have occurred if, on or after the
date hereof:
(i) the Board of Directors of the Corporation adopts a resolution to the
effect that, for the purpose of this Agreement, a Change in Control
has occurred, or
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(ii) any person, or group of persons, acting in concert becomes in any
manner the beneficial owner, directly or indirectly, of securities of
the Corporation representing twenty five percent or more of the voting
securities of the Corporation, or any successor to the Corporation, or
(iii) during a period of twenty-four consecutive months, individuals who at
the beginning of such period constitute the entire Board of Directors
of the Corporation shall cease for any reason to constitute a majority
thereof.
14. CONFIDENTIALITY
The Executive acknowledges and agrees that:
(a) in the course of performing his duties and responsibilities as an
Executive of the Corporation, he will have access to and will be
entrusted with detailed confidential information and trade secrets
(printed or otherwise) concerning past, present, future and
contemplated products, services, operations and marketing techniques
and procedures of the Corporation and its subsidiaries, including,
without limitation, information relating to addresses, preferences,
needs and requirements of past, present and prospective clients,
customers, suppliers and Executives of the Corporation and its
subsidiaries (collectively, "Trade Secrets"), the disclosure of any of
which to competitors of the Corporation or to the general public, or
the use of same by the Executive or any competitor of the Corporation
or any of its subsidiaries, would be highly detrimental to the
interests of the Corporation;
(b) in the course of performing his duties and responsibilities for the
Corporation, the Executive will be a representative of the Corporation
to its customers, clients and suppliers and as such will have
significant responsibility for maintaining and enhancing the goodwill
of the Corporation with such customers, clients and suppliers and
would not have, except by virtue of his employment with the
Corporation, developed a close and direct relationship with the
customers, clients and suppliers of the Corporation;
(c) the Executive, as an officer of the Corporation, owes fiduciary duties
to the Corporation, including the duty to act in the best interests of
the Corporation; and
(d) the right to maintain the confidentiality of the Trade Secrets, the
right to preserve the goodwill of the Corporation and the right to the
benefit of any relationships that have developed between the Executive
and the customers, clients and suppliers of the Corporation by virtue
of the Executive's employment with the Corporation constitute
proprietary rights of the Corporation, which the Corporation is
entitled to protect.
In acknowledgement of the matters described above and in consideration of
the payments to be received by the Executive pursuant to this Agreement, the
Executive hereby agrees that he will not, during the period commencing on the
date hereof and ending one year following the termination of this Agreement,
directly or indirectly disclose to any person or in any way make use of (other
that for the benefit of the Corporation), in any manner, any of the Trade
Secrets, provided that such Trade Secrets shall be deemed not to include
information that is or
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becomes generally available to the public other than as a
result of disclosure by the Executive.
15. NON-SOLICITATION
The Executive hereby agrees that he will not, during the period commencing
on the date hereof and ending one year following the termination of this
Agreement, be a party to or abet any solicitation of customers, clients or
suppliers of the Corporation or any of its associates or affiliates (as those
terms are defined in the Canada Business Corporations Act) to transfer business
from the Corporation or any of its associates or affiliates to any other person,
or seek in any way to persuade or entice any Executive of the Corporation or any
of its associates or affiliates to leave that employment or to be a party to or
abet any such action.
16. DISCLOSURE During the term of this Agreement, the Executive shall
promptly disclose to the Board of Directors full information concerning any
interest, direct or indirect, of the Executive (as owner, shareholder, partner,
lender or other investor, director, officer, Executive, consultant or otherwise)
or any member of his immediate family in any business that is reasonably known
to the Executive to purchase or otherwise obtain services or products from, or
to sell or otherwise provide services or products to the Corporation or to any
of its suppliers or customers.
17. RETURN OF MATERIALS
All documentation, electronic files, forms, brochures, books, materials,
written correspondence, memoranda, documents, manuals, computer disks, software
products and lists (including lists of customers, suppliers, products and
prices) pertaining to the business of the Corporation or any of its associates
or affiliates (as those terms are defined in the Canada Business Corporations
Act) that may come into the possession or control of the Executive shall at all
times remain the property of the Corporation or such associates or affiliates,
as the case may be. On termination of the Executive's employment for any
reason, the Executive agrees to immediately deliver to the Corporation all such
property of the Corporation in the possession of the Executive or directly or
indirectly under the control of the Executive. The Executive agrees not to make
for his personal or business use or that of any other party, reproductions or
copies of any such property or other property of the Corporation.
18. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the Province of Ontario.
19. SEVERABILITY
If any provision of this Agreement, including the breadth or scope of such
provision, shall be held by any court of competent jurisdiction to be invalid or
unenforceable, in whole or in part, such invalidity or unenforceability shall
not
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affect the validity or enforceability of the remaining provisions, or part
thereof, of this Agreement and such remaining provisions, or part thereof, shall
remain enforceable and binding.
20. LIFE INSURANCE
It is agreed that the Corporation or any of its associates or affiliates
(as those terms are defined in the Canada Business Corporations Act) shall have
the right to obtain life insurance on the Executive's life, at the Corporation's
sole expense and with the Corporation or such associate or affiliate as the sole
beneficiary thereof. The Executive shall: (a) cooperate fully in obtaining such
life insurance; (b) sign any necessary consents, applications and other related
forms or documents and (c) take any reasonably required medical examinations.
21. ENFORCEABILITY
The Executive hereby confirms and agrees that the covenants and
restrictions pertaining to the Executive contained in this Agreement, including,
without limitation, those contained in sections 14, 15, 16 and 17, hereof, are
reasonable and valid and hereby further acknowledges and agrees that the
Corporation would suffer irreparable injury in the event of any breach by the
Executive of his obligations under any such covenant or restriction.
Accordingly, the Executive hereby acknowledges and agrees that damages would be
an inadequate remedy at law in connection with any such breach and that the
Corporation shall therefore be entitled in lieu of any action for damages,
temporary and permanent injunctive relief enjoining and restraining the
Executive from any such breach.
22. MODIFICATION
This Agreement may not be orally canceled, changed, modified or amended,
and no cancellation, change, modification or amendment shall be effective or
binding, unless in writing and signed by the parties to this Agreement.
23. NO ASSIGNMENT
The Executive may not assign, pledge or encumber the Executive's interest
in this Agreement nor assign any of the rights or duties of the Executive under
this Agreement without the prior written consent of the Corporation.
24. SUCCESSORS
This Agreement shall be binding on and enure to the benefit of the
successors and assigns of the Corporation and the heirs, executors, personal
legal representatives and permitted assigns of the Executive.
25. NOTICES
Any notice or other communication required or permitted to be given
hereunder shall be in writing and either delivered by hand or mailed by prepaid
registered mail. At any time other than during a general discontinuance of
postal service due to strike, lock-out or otherwise, a notice so mailed shall be
deemed
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to have been received three (3) business days after the postmarked date thereof
or, if delivered by hand, shall be deemed to have been received at the time it
is delivered. If there is a general discontinuance of postal service due to
strike, lock-out or otherwise, a notice sent by prepaid registered mail shall be
deemed to have been received three (3) business days after the resumption of
postal service.
Notices shall be addressed as follows:
a) If to the Corporation:
Xxx Xxxxx, CEO
Universe2U Inc.
00 Xxxx Xxxxxx Xxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxx X0X 0X0
Tel: 000-000-0000
Fax: 000-000-0000
b) If to the Executive:
R. Xxxx Xxxxxxxx
00 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
000-000-0000 (H)
000-000-0000 (Cell)
26. COUNTERPARTS
This Agreement may be executed simultaneously in several counterparts, each
of which shall be an original, but all of which together shall constitute one
and the same original.
27. ENTIRE AGREEMENT
This Agreement represents the entire agreement between the Corporation and
the Executive with respect to the subject matter hereof and all prior agreements
relating to the Executive's employment or compensation, written or oral, are
nullified and superseded hereby.
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28. LEGAL ADVICE
The Executive hereby represents and warrants to the Corporation and
acknowledges and agrees that he had the opportunity, at the Corporation's
expense to seek and was not prevented nor discouraged by the Corporation from
seeking independent legal advice prior to the execution and delivery of this
Agreement and that, in the event that he did not avail himself of that
opportunity prior to signing this Agreement, he did so voluntarily without any
undue pressure and agrees that his failure to obtain independent legal advice
shall not be used by him as a defence to the enforcement of his obligations
under this Agreement.
IN WITNESS WHEREOF this Agreement has been executed by the parties heretoas
of the date first above written.
SIGNED, SEALED & DELIVERED ) Universe2U Inc.
in the presence of: )
) ---------------------------
) Xxx Xxxxx
) Chief Executive Officer
)
)
) ---------------------------
Witness ) Xxxx Xxxxxxxx
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